17 February 2014
ASEAN’s Declaration of Human Rights might flatter to deceive when released this July, but it won’t be an opportunity lost, writes MATHEW DAVIES.
ASEAN flags.ASEAN’s 15-year engagement with human rights reaches a critical moment in July 2012 with the release of the ASEAN Declaration of Human Rights (ADHR).
The final form of the Declaration will reveal which direction ASEAN has chosen to take its commitment to human rights. Civil society actors are keen for the Declaration to provide a considerable list of rights and freedoms in order to breathe life into what to date has been an engagement with human rights devoid of any detail.
However, there are considerable reasons to doubt whether this is what is being prepared. Yet, even if the Declaration falls short of what optimists hope, it lays the groundwork for future efforts. The Declaration is likely to be an opportunity delayed, not an opportunity missed.
Getting from there to here: understanding the nature of ASEAN’s commitment to human rights
The apparent scale of ASEAN’s journey towards human rights initially appears impressive.
ASEAN was founded in 1967 in the wake of the failure of previous efforts to create a regional body, with memories of colonialism still fresh in the minds and the threat of regional tensions spilling over into armed conflict dangerously present.
This atmosphere shaped the first 30 years of ASEAN, which was formed with an overriding commitment to member state and regional stability, something achieved by a firm belief in non-intervention. Human rights concerns, with their focus on the nature of domestic politics, were not only excluded from ASEAN’s interests but also understood to be actively detrimental to them.
The 1997 Asian Financial Crisis dissolved this consensus. As the crisis spread across the region ASEAN seemed not only deaf to the suffering of its citizens but also increasingly part of the problem, as the principle of non-intervention was held complicit in worsening economic and social dislocation.
In response ASEAN members felt the need to develop a focus on the social well being of their citizens alongside more traditional goals.
By 2004 this commitment had developed a clear human rights component under the combined impact of direct member state deliberation; the input from Track Two and Track Three actors; and the growing concern with the status of Myanmar as a member.
In November 2007 all 10 members adopted the ASEAN Charter that placed human rights promotion as a core principle of regional cooperation.
In 2009 ASEAN members further agreed to the creation of the ASEAN Intergovernmental Commission on Human Rights, explicitly tasked with protecting and promoting rights.
More informative, however, than what ASEAN has done, is the way that it has achieved this reform.
Before 1997 ASEAN was governed by the principles of consensus, unanimity and sovereign equality. There was no hint of supranationalism to ASEAN and all members were required to agree to reforms. This set of practices rode out the storm of the Asian financial crisis and survive today.
ASEAN members were, and remain, highly diverse with regards to their commitment to human rights. The Philippines, Thailand and Indonesia have been in the vanguard of pushing for regional adoption of human rights, but a long tale of more reluctant states – the newer members of Laos, Cambodia, Vietnam and most obviously Myanmar – have shown markedly less interest.
From the history of ASEAN to the nature of the Declaration
The variety between member states position on human rights, when read alongside the continued need for unanimity in decision-making, has exerted strong influence over ASEAN’s commitment to rights. Both of these impacts have weakened regional oversight of human rights. They also both strongly suggest the likely form of the upcoming Declaration.
First ASEAN’s engagement with human rights has always favoured breadth over depth. ASEAN has never provided detail about what it means when it speaks of “human rights”.
Nor has ASEAN pointed towards any global treaties to fill that gap, unsurprising given that Brunei, Myanmar Malaysia and Singapore have not ratified either the International Covenants on Civil and Political or Economic, Cultural and Social rights. Getting the agreement of such a variety of members has been achieved by stripping away the detail that enables scrutiny.
Second, there are no formal mechanisms for enforcing human rights within ASEAN. Yes the Commission now exists, but the terms of reference for it explicitly require it to work within the established non-intervention principle.
A detailed declaration of rights cuts across both of these trends. A detailed list of rights and freedoms would provide a precise way to measure how well member states are fulfilling regional standards. This would not only apply to civil society actors; the Commission itself, an ASEAN institution, would be in a position to judge the situation within member states.
ASEAN has in the past made similar efforts to do this with regards to Myanmar, but this has been the exception. A detailed list of rights would make regional and official discussion of rights a regular part of ASEAN politics.
Both of these consequences are at odds with ASEAN’s approach to rights up to this point.
The signs are that the Declaration will fall short of the desires of the optimists. Drafting of the final wording of the Declaration has been undertaken by the 10 member state delegates to the Commission, meeting behind closed doors, with no input from civil society.
A brief window of consultation with civil society is planned but only after the draft has been created in late June 2012, immediately before final agreement on the Declaration.
An opportunity delayed is not an opportunity missed
The final form of the Declaration will be known soon and, for the reasons given, I think it will disappoint those who are looking for a big and radical step forwards.
Even if this is the case however, it is not the end of the process.
ASEAN’s engagement with human rights remains ongoing. Discussion about human rights has not only become a legitimate part of regional politics but is now a far more complicated conversation than ever before. Track Two institutions, NGOs and National Human Rights Institutions are now all part of the “human rights space” within ASEAN, something unthinkable even a decade ago.
The declaration does not finish that conversation; instead it will become part of it, a new topic for debate and a new avenue for pressure - and this may well prove to be its lasting contribution.
Dr Mathew Davies is a research fellow in the College’s School of International, Political and Strategic Studies. His research interests cover human rights, socialisation, ASEAN, the EU, the OAS, regionalism, norm diffusion and international relations theory.